Friday, January 30, 2015

Francisco Santos
When Santos takes the stand, Martinez appears to stare at the witness. DDA Akemon requests a side bar, on the record. While at the side bar, Martinez writes on a notepad. He’s using a pen. He looks over at the attorneys for a moment then he looks over at the witness again. Martinez sits back in the chair. His right elbow is perched on the arm of the chair and the fingers of his right hand are touching his mouth.

Santos states he is 35 years old. He knew a woman named Luz Nieves. At the time he knew her, she was his roommate. She had a nickname, Negra. She was also called Nellie, but he called her Negra. He resided with her on Bonner Avenue, apartment #6. It was not a romantic relationship, just roommates. They slept in the same room the master bedroom. He never considered themselves boyfriend and girlfriend. They were not sexually intimate. Luz son Elliot also lived there at the time.

Santos describes the layout of the apartment.

Santos knew Martinez through the street. Luz was dealing drugs at that time, crack cocaine. Marijuana was usually for her personal use. He wasn’t involved in the dealing but a user. It was heavy use, just crack. Santos states that he wasn’t buying at the time. They were both addicts and would smoke together. Luz would deal and supply her own high. She would buy the next amount, to buy the next batch and she would share with him.

Santos states he’s been clean for 7-8 years. At the time, Elliot was 11 or 12 years old. He would occasionally take care of Elliot. He was not blood related to Elliot at all. He would give Elliot advice about certain things, about school and girls. Elliot was acting out, and he would give him certain advices. Santos states the relationship was that of a mentor. He did not mentor Elliot in drugs. Santos thinks he was 22 years old at the time.

Santos states the name that they referred to Martinez was “June” or “Junebug.” He first met Martinez at Luz’ apartment. “I’d seen him before,” Santos recounts, “But never had a chance to talk to him.” He saw Martinez inside the apartment. On about May 10, 2001, he was stabbed in this case. Using that date as a reference DDA Akemon asks Santos to determine when he first met the defendant. Santos met the defendant four months prior, when he moved into Luz’ apartment.

During that four months he lived with Ms. Nieves, he saw Martinez at the apartment almost every day. It was “constant.” Santos considered him an acquaintance. Martinez was there to purchase drugs and he saw that with his own eyes. The first time he saw Martinez, he was purchasing drugs, specifically crack cocaine.

Drug transactions would start with a knock on the door. Either Luz would open the door or Santos.

DA: At what hours of the day would people knock to buy drugs?
FS: You could say 24 hours.

The only reason Martinez came to the apartment was to buy drugs. It was not a social visit.

DA: Did you ever see him attempt to buy crack cocaine on credit?
FS: Yes.

Santos explains that there were a lot of things that Martinez would bring to pawn or try to exchange for the drug. Martinez ended up running a big tab with Luz, between $800.00 and $1,000.00. “He would bring stuff, but it was useless.” Luz would give him the drug, and that started to add up. “It was junk. It was basically worthless,” Santos adds.

A few times Martinez would communicate with Luz son, Elliot, such as a greeting. (Hi, what’s going on.) He ever saw Martinez take Elliot to go get ice cream. In regards to things that Martinez would say when he stopped by, Santos states, “He was working construction ... I got off work, I’m tired ... things of that nature.”

DA: Did you ever have a beef with him, harsh words, anything like that?
FS: Not that I recall.
DA: [Ever? Never?] had a fight?
FS: Not that I recall.
DA: He was cordial ... ?
FS: He was, Hi, how are you? Things like that. ... Just problems, whatever.
DA: So you would chit-chat casually?
FS: Yes, absolutely.

The witness nods his head as he answers the last question.

DA: May 9th, 2001, ... night before you got stabbed. From say 8 PM at night, when all this started, where were you?
FS: I was in the apartment.
DA: Who else was present?
FS: Elliot was ... actually getting home. ... Luz was there ... She was attending the door. People coming in and out.
DA: A few or a lot?
FS: It was pretty consistent.
DA: At some point, did Mr. Martinez come over? ... At approximately what time?
FS: Between 11, 10, 10:30, something like that.
DA: What happened?
FS: He wanted some credit. ... Luz explained to him that he already owed her some money. ... He was being a little bit loud. ... She told him no. ... I stepped in because Elliot, he was already sleeping. ... I told him to lower his voice.
DA: What happened after that?
FS: He kept on ... talked about .... Luz ended up closing the door on him.

DA: Moving forward. ... One AM in the morning.
FS: Luz and I were in the bedroom watching TV. ... He had a pretty loud Blazer ... his truck.
[Unknown: You could hear it.]
FS: She told me, “There’s Junebug coming. ... He comes upstairs, knocked on the door. She opened the door. ... She was between [?] .... [he was?] walking in. He told me he wanted to talk to me.
DA: What happened after that?
FS: He kept on talking about .... Luz ended up closing the door on him.
DA: Moving forward .... One AM in the morning.
FS: Luz and I were in the bedroom watching TV. ... He had a pretty loud blazer, his truck.
[Unknown: You could hear it.]
FS: She told me, “There’s Junebug coming. He comes upstairs ... knocks on the door .... she opened the door. ... She was between [him and me?] ... walking in. ... He told me that, he wanted to talk to me. ... At that time I was going to use the restroom. ...I told him .... hold on. ... Let me use the bathroom.

Santos is using the restroom across from the master bedroom in the hallway. Inside the bathroom, Santos heard conversation.

FS: I heard talking. It was then I started [to hear] Luz crying. ...[She said] ... why are you doing this to me. ... I’ve never done anything to you. ... I was in the restroom, but I could hear that.

Santos turned off the bathroom light and opened the door slowly. As he was walking through the hallway, he turned to the right. He saw Luz sitting on the couch. He saw her back. She was holding her head. DDA Akemon backs Santos up a bit to go over again what he just testified to.

FS: She answered the door. I was coming out of the bedroom, and that’s when I saw Junebug. ... He told me that he wanted to talk to me. ... I had to use the restroom.
DA: Do you have any idea what he wanted to talk to you about?
FS: I think he got offended because I asked him to keep it down.
TB: Objection!
JS: Sustained.
DA: Earlier in the evening, did you shush him
FS: You could say that.
DA: He came back later, knocked on the door and said he wanted to talk to you?
FS: Yes.
DA: You were in the bathroom?
FS: Yes. ... I could hear talking but I couldn’t make up what they were saying.

Santos leaned over to put his ear to the door to hear better and then he could hear Luz crying.

DA: How much time went by from the time you saw Martinez and the time you heard Ms. Nieves crying?

Santos shakes his head. He replies, “Five minutes, maybe. .... I looked at her. She was holding her neck. ... I said, Negra, what happened?” Martinez was by the entrance, by the frond door. Santos saw Martinez with a knife. It had blood on it. He was charging at Santos. Santos was closer to the master bedroom. He was about to go into the master bedroom and lock the door. There was a bat in there. Santos was going to defend himself.

When Santos came out of the bathroom and look down the hallway, he was able to see Ms. Nieves. She was facing toward the table, looking down. DDA Akemon asks the witness to look at a photo. He identifies the living room of his apartment where Luz got stabbed. He is then shown a photograph of the hallway, with blood on the bedroom door jam.

DA: Do you recall that?
FS: Yes.
DA: What is that?
FS: Master bedroom, that’s the bedroom. That’s the entry to the door.

When Santos came out of the hallway, Martinez was near the kitchen entryway. Showing him a photo, Santos is asked to identify where Martinez was in the apartment. The kitchen entrance and the front door of the apartment are right next to each other.

When Santos looked at Luz, he did not see any blood on her. He only saw her holding her neck. He saw the defendant with a knife that was 11-13 inches long. He saw blood on the knife.

DA: What were you thinking about?
FS: A lot of things go through your mind. ... I was high ... I wasn’t functioning, thinking clearly.
DA: How do you feel your recollection is about these events?
FS: Pretty good.

Santos testifies that Martinez came running towards him. He ran towards the master bedroom and locked the door. Martinez appears to be writing intently at the defense table. Santos states that the front door was open. When Santos looked at Martinez, Martinez was facing him. Santos ran to the bedroom and locked the door. Santos testifies he was trying to reach the bat. Martinez broke the door, he kicked the door. Santos held the door as long as he could Martinez managed to kick the door in. It then turned into a fight at that point. Santos and Martinez “went into it.” Santos tried to defend himself. Santos tried to retrieve the knife from Martinez.

FS: I remember swinging, lifting my arm up to block the knife. ... He ended up puncturing me all the way through the forearm.
DA: Please demonstrate what Mr. Martinez did to you.

The witness demonstrates what he did.

FS: I was trying to do something. I was trying to survive.

Santo’s tendon in his left arm was cut through. It had to be reattached. That is the major injury that he remembers.

FS: We kept on wrestling back to back. He kept on stabbing me, multiple times. ... There was one time that I could grab onto the knife, .... and I pulled it out and cut my finger. ... He kept on stabbing me in the face. ... My temple.... back of my head ... He kept on .... I grabbed him and kept on shoving him towards the door. [towards the apartment entrance].

He did whatever he could to get Martinez out of the apartment, move him towards the front door. Martinez was much heavier at that time. Santos was lighter, maybe 135 lbs. Santos states hes 200 lbs now, 5’ 11” tall. The last time Martinez stabbed him, was in the back of the head, on the stairs outside the apartment.

DA: What was Mr. Martinez wearing on the first time he came over?
FS: Shorts and a tank top.
DA: Did his clothing change?
FS: He was wearing sweats and a gray sweater.
DA: Did you notice anything else?
FS: He looked a little bit stockier, bigger. ... I can’t really tell what it was, but it felt like he was wearing a vest.
DA: Did you feel anything on his legs?
FS: Yes, it felt different.
[Unknown: Like padding.]
DA: In your mind, what do you think it was?
TB: Objection! Speculation!
JS: Sustained!

At the time, Santos thought it was a bullet proof vest, and that it was underneath Mr. Martinez’s clothing.

DA: Did you have a potato peeler?
FS: No.
DA: Did you start some trouble with him?
FS: No.
DA: What did you do next? FS: I went back and looked for Luz.

Santos looked in the living room then bedroom for Luz. He didn’t find her. He then followed a trail of blood out of his apartment that led to the manager’s apartment. The manager looked through the window, and asked him what happened. I could see through the window that Luz was sitting on the couch. Santo’s identifies a photo of the manager’s apartment, and identifies a photo of blood on the hallway. When he saw Luz in the manager’s apartment, it was hard to see her, because he had blood in his eyes. He did see that she was sitting down, holding her neck.

The apartment manager, Angie, wouldn’t let Santos into her apartment. Angie thought he did this to Luz. Santos told Angie to call the ambulance and call the cops. Santos told Angie to tell the police that they got robbed. Santos could hear the sirens, far away. He then rushed downstairs and waited for the ambulance. The police arrived as well. At that time, in the street, Santos was bleeding really, really bad. He took his tank top and wrapped it around his left arm. The injury he sustained to his arm was severe. He was bleeding very bad. He was trying to put pressure on the wound.

The ambulance came and they wanted to put me on the stretcher. Santos told them that there was a lady upstairs that had injuries as well, and to take her first. Santos is shown a photo of the apartment and a photo of his shirt on the ground in front of the apartment. He identifies both. He’s then shown photos of his injuries, and asked to point to his injuries on his face with the laser pointer. One photo shows his left arm heavily bandaged, almost like it was broken. Martinez turns in his seat to look at the screen of Santos’ injuries. Martinez continues to stare at the screen. Santos identifies the stab wound on the top of his head. He’s asked to show the jury his injury on his arm. He rolls up his left sleeve and also shows the court.

It’s described as an inch long injury, left wrist area, about three inches above the juncture of the arm and the wrist. With this injury the knife went into one side of the arm and came out the other. There’s a big scar. I can see it from where I’m sitting. It’s on his forearm, anterior side, in the middle of the forearm. Santos points out to where the knife came out the other side of the arm.

Direct ends and cross examination begins.

11;15 AM
Santos is asked what the discussion was about, the first time Martinez came over to the apartment. Santos states the discussion was with Nellie, and it was about buying drugs on credit. Santos states Martinez wasn’t given drugs on credit.

Mr. Burns confronts Santos with his original interview with detectives.

TB: Didn’t you tell detectives at the time, that he was given drugs at that time?
FS: I don’t remember that.

There is another question about keeping the noise down, and that Martinez didn’t protest at that time. Santos states Nellie and Martinez kept talking about credit. I believe Santos confirms they were all in the room together, and that this first event, all took place at the front door. Santos replies that Martinez was “half way in” the apartment.

TB: The second time he comes over, Ms. Nieves answered the door is that right?
FS: Yes.
TB: Did you stop for some reason? .... Were you on your way to the bathroom?
FS: Yes.
TB: Were you wide awake at the time?
FS: Yes.
TB: Did you tell detectives you were about to go to sleep?
FS: I can’t remember that.

It appears like the witness is thinking. He might be having a hard time testifying, I don’t know.

TB: You saw him have a conversation with Ms. Nieves. ... In that conversation she was asking him to leave?
FS: yes.
TB: She was ordering him?
FS: She was asking him. ... You’re asking to give me an answer ... It’s really hard to say. ... I don’t recall. ... She was asking him to leave and he came into the apartment. He said he wanted to talk to me.
TB: So he came to within a foot of you?
FS: Yes.
TB: He didn’t assault you at that time? ... You had to go to the bathroom so bad that you didn’t think it was critical to stay there and back up Nellie?
FS: It didn’t cross my mind.

Santos states that it would not be unusual for people to come by at that time. Santos is asked if there were ever people at the apartment when Martinez came over. Santos states that there would be people who would come and party a little bit and do drugs and leave. They never stayed over night.

TB: Was there any time that Mr. Martinez was over and there were other people partying?
FS: He would be ... people come by and do transactions but I can’t say that he was there partying.
TB: You can’t say that it didn’t happen?
FS: I can’t say that it did.
TB: Do you know what he wanted to talk about?
FS: No.
TB: Did he mention anything about a [???] bubble up?
FS: I don’t remember.
TB: You said he was wearing a gray sweater?
FS: Yes. ... The second time.
TB: And gray sweats?
FS: Yes.
TB: You didn’t see what he had on under his clothes?
FS: No. ... But I felt it.
TB: And that was in the course of a big struggle?
FS: Yes.
TB: And you never tried to turn the knife on him? ... And the knife is not from failing to penetrate him?

I miss getting Santos’ answers.

Santos is asked about the sequence of events again, regarding the second time Martinez came over. Santos states that he and Nellie heard the truck pulling up. Martinez wanted to talk about something. That was after the door was opened. Before the door was opened, Santos states he was walking toward the bathroom.

TB: You were walking towards the bathroom and you s topped?
FS: He told me he wanted to talk to me.
TB: So you had a conversation with Ms. Nieves before he talked to you right?
FS: Yes.
TB: And you could hear their conversation right?
FS: Yes. ... I was between the dining room area and the bedroom, right where the door frame is. Right in front of it.
TB: You didn’t see Ms. Nieves break out any cocaine?
FS: No.
TB: You didn’t see Mr. Martinez bring out any money?
FS: No.
TB: Were you in any way alarmed by Ms. Nieves telling Mr Martinez to get out of the apartment?
FS: In that type of business, you always ... going to have people ...

The witness shakes his head as he answers.

FS: ... come at you. ... All ask for credit, not complying to whatever the owner of the {?] serving says. ... I’ve seen it before.

Santos is asked if it’s a dangerous business. Santos replies, “Some people look at it that way.”

TB: And sometimes, it might be necessary to throw someone out of the apartment?
FS: I’ve seen it done before, yes.
TB: Was that your job at Ms. Nieves apartment?
FS: No.
TB: So she had nobody to enforce her rules at the apartment?
FS: What do you mean, enforce?
Over at the defense table, Martinez is nodding his head.

Santos states that people would usually comply. Santos states there were no weapons in the house. Santos is asked about the baseball bat in Nellie’s room and then what he told detectives about a BB gun. Santos explains that he had one but had thrown it away weeks before. Mr. Burns asks if the BB gun looked like a 48. Santos replied, “No.”

TB: Did you show it previously to Mr. Martinez?
FS: Yes, I did show it to him.
TB: You just showed it to him, ... nothing more? ... So you didn’t think Ms. Nieves needed any back up when you went to the bathroom?
FS: No.
TB: You thought Nellie could take care of her house?
FS: The people that stopped by the house .... they weren’t as ... problematic. ... There were people that would stop by ... ask for credit by they would comply and leave so...
TB: So you thought she could take care of herself?
FS: Yeah.
TB: Besides telling him to get out, was she telling him anything else?
FS: I don’t know.
TB: Was it an angry tone?
FS: It was agitated. It was a little bit agitated.
TB: Was she raising her voice?
FS: No, but it was more like...
TB: Did she use any curse words?
FS: I can’t remember.

I’m getting cold in the courtroom, and I check the time. 11:35 AM.

Mr. Burns asks if Santos was doing “number one or number two” in the bathroom. Santos states, “number two.”

TB: So you could hear speaking?
FS: I couldn’t make out what they were saying, but I could hear them talking.
TB: You couldn’t hear Mr. Martinez, but you could hear Ms. Nieves?
FS: I could hear mumbling but I couldn’t make out the conversation.
TB: Did it sound like an argument?
FS: I couldn’t say.
TB: Did you tell detectives that you overheard an argument?
FS: I don’t remember. ... when I heard the mumbling, it sounded like a mumble, then I heard her cry.

Mr. Burns asks Santos if he remembers testifying at a preliminary hearing in the original case. Santos remembers. Mr. Burns confronts Santos.

TB: And you took the same oath that you took here. Do you remember testifying at that preliminary hearing that Ms. Nieves was speaking loudly?
FS: I can’t remember saying that.

TB: Do you recall what you testified?
FS: Once again, it’s been a long time.
TB: Did you testify at the prelim that she was speaking kind of loudly
FS: Yes.

The door to the bathroom is not a thick door. It’s thin. The same kind of door was on the bedroom door.

TB: Did you hear some commotion outside?
FS: Like I said, there was some mumbling.
TB: Did you hear any banging or knocking or falling noises?
FS: In my mind I thought I did or I assume I did. But yeah.

Santos nods his head as he answers.

TB: So there was some kind of banging noise you might have heard?

Santos appears to pause before he answers. I miss the answer.

TB: You didn’t hear any screams though, did you?
FS: No.
TB: As you came out of the bathroom you were not in the hallway?
[Unknown: First thing, correct.]
FS: Yes.
TB: And there you see Mr. Martinez making his way to the front door?
FS: No. ... I looked and I saw Luz on the couch holding her neck. ... and I looked ...
TB: When you first came out of the bathroom, you can’t see the couch area, but you can see the front door ...?
FS: When I was coming out of the bathroom, my mind was set on trying to see what happened.
TB: So when you first came out of the bathroom, you didn’t see Mr. Martinez at all?
FS: Like I said, the first thing I was trying to do was to find her to see what happened.
TB: You could hear all that, all the way in the bathroom down the hall, you could hear that?

Santos explains that he heard Luz speak in Spanish and then in English. She first said in Spanish, “Why did you do this to me?” And then said in English “Why....” (I miss the rest of what Santos answers.)

TB: Were your conversations with Mr. Martinez in Spanish?
FS: Actually both. Spanglish you could call it.
TB: When you can out was Ms. Nieves still talking?
FS: No.
TB: Was she sitting with her back towards you?
FS: Yes.
TB: She was holding the back of her neck?
FS: The side of her neck. ... She was forward, like this, but her right hand was to her neck.

Judge Speer clarifies what the witness demonstrated for the record.

TB: And you could not see blood on her, true?
FS: Yeah.
TB: She was holding with one hand?
FS: I don’t know if it was two hands, but what I saw was two hands.
TB: And then you saw Mr. Martinez?
FS: I looked towards the door.
TB: He was moving towards the door when you saw him yes?
DA: Objection!
JS: Over ruled!
FS: Once again, when I looked over there, same thing. We locked eyes and he came toward me. ... I don’t know if he was leaving or not. I don’t know what was his intention.
TB: Did you know what he was doing back at the preliminary hearing? That he was actually going towards the door?
FS: He was at the door when I looked.
TB: You testified at the preliminary hearing ....

Mr. Burns reads from the prelim transcript.

TB: Do you recall testifying as to this? “How far away was Ms. Nieves from my client? He was actually going towards the door. She was sitting in the living room and he was going towards the door. Did you say that?
FS: If it’s on paper then I guess I did. ... There are things you try to block out .... Thank you for reminding me.
TB: Be honest with us.
FS: I am being honest.
TB: There were bicycles by the front door?
FS: I can’t remember bicycles.
TB Let me show you some photographs.

Mr. Burns shows Santos a series of photographs of Nieves’ apartment.

TB: What am I looking at there?
FS: Looking at the dining room area next to the entrance. That’s the front door.
TB: Was the door open or closed when Mr. Martinez was in the house?
FS: Open.
TB: So when you saw Mr. Martinez, he was headed for the open door, right?
I believe the witness nods his head.

Santos identifies photos of the hallway and the door to the master bedroom. He identifies where the bathroom was in the apartment off the hallway.

TB: See where Nellie was sitting? ... This pillow?
FS: She was more towards the left side, middle left side.
TB: So, he had to jump over all those things to get to you?
FS: If you actually look towards there, there was a walkway. ... Actually, the chair was propped up, towards the dining room.

Santos is asked to point out in the photographs where he was standing. Santos is asked about other areas of the apartment in the photographs. Santos testifies that the struggle was not in the area of the kitchen or near Elliot’s bedroom. Santos verifies that the struggle was contained mostly to the living room and Nellie’s bedroom. There was no fight in the bathroom. Santos verifies that the first thing in his mind was to get the bat, to defend himself.

Judge Speer calls the noon lunch break.More to come in Day 5, Part III....

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